Congress Amends the Endangered Species Act

On September 29, 2005, the House of Representatives passed H.R. 3824, the “Threatened and Endangered Species Recovery Act (TESRA) of 2005” by a vote of 229 to 193. 36 Democrats supported final passage of the bill, while 34 Republicans opposed the legislation. The Miller/Boehlert substitute, which NAHB opposed, failed by a vote of 206 to 216. No other amendments were made in order for the floor.  H.R. 3824 would fundamentally change the ESA in law and practice. Most notably, TESRA would:

• Eliminate the concept of  “critical habitat” from the bill entirely.  The critical habitat provisions are the most controversial and litigated aspect of the current Endangered Species Act.  TESRA would abolish all current regulatory requirements regarding critical habitat, most notably consultation with the federal government over whether a project “adversely modifies” critical habitat.
• Give greater prominence to recovery plans and the recovery plan process, to remove wildlife from the endangered species list.  
• Leave the current, more favorable regulatory definition of “jeopardy” to species in place.
• Add provisions that require landowners to be paid “fair market” value if the Secretary determines that a proposed land use activity would result in the “take” of a species.
• Eliminate duplicative Section 7 consultations on activities for which an incidental take permit already has been issued where the action implements, or is consistent with, the habitat conservation plan (HCP) or other agreements incorporated into the incidental take permit.
• Codify the “No Surprises” rule that the terms of a negotiated, agreed-upon habitat conservation plan can not be altered or modified later by the federal government, if the health of a species subsequently declines.
• Require the Secretary to issue an analysis of the impact and benefits of the listing determination with respect to economic impacts and benefits, national security and other relevant impacts and benefits, concurrently with the listing determination.

On December 15, 2005, Senator Crapo introduced a related bill in the Senate with the stated purpose of "amend[ing] the Endangered Species Act of 1973 to enhance the role of States in the recovery of endangered species and threatened species, to implement a species conservation recovery system, to establish certain recovery programs, to provide Federal financial assistance and a system of incentives to promote the recovery of species, and for other purposes."  This bill has been referred to the Committee on Finance.

For a copy of S. 2110, please click on the following link and search by the bill number on the Library of Congress web site:

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